More Wikipedia Law:

From Badasa v. Mukasey (8th Cir. Aug. 29) (paragraph break added, most citations omitted:

Lamilem Badasa entered the country illegally using a fraudulent Italian passport. She later applied for asylum under 8 U.S.C. § 1158 and for relief under Article III of the Convention Against Torture. The Immigration Judge (IJ) found that Badasa had submitted fraudulent documents designed to establish her identity, and that her claim was not credible. The Board of Immigration Appeals (BIA) initially dismissed her administrative appeal, concluding that Badasa had failed to establish her identity. Badasa moved to reopen her case based on a travel document recently acquired from the Ethiopian government, known as a laissez-passer, which Badasa alleged would establish her identity. Noting that the Department of Homeland Security (DHS) concurred in the motion, the BIA reopened the case and remanded it to the IJ for further consideration.

On remand, the DHS submitted several documents designed to explain the purpose of a laissez-passer, and argued that the document did not establish identity and nationality, but rather was “simply the granting of the authorization for an alien to travel to or from that country.” After considering evidence presented by the parties, including information submitted by the DHS from an Internet website known as Wikipedia, the IJ found that the laissez-passer is a single-use, one-way travel document that is issued based on information provided by the applicant. On this basis, the IJ concluded that the Ethiopian government’s issuance of the travel document did not change her prior decision regarding Badasa’s failure to prove her identity, and therefore denied the application for asylum.

The BIA dismissed Badasa’s appeal, concluding that the IJ’s determination that the laissez-passer travel document was insufficient to establish Badasa’s identity was not clearly erroneous. The BIA stated that it did “not condone or encourage the use of resources such as in reaching pivotal decisions in immigration proceedings,” and commented that the IJ’s decision “may have appeared more solid had not been referenced.” The BIA declined, however, to find that Badasa was prejudiced, because without considering Wikipedia, the BIA believed the IJ’s conclusion “was supported by enough evidence to find no clear error.”

We conclude that the case must be remanded for further proceedings, because the BIA failed adequately to explain its conclusion that Badasa did not establish her identity. The BIA did not adopt the entirety of the IJ’s reasoning for rejecting Badasa’s claim. Rather, the BIA acknowledged that it was improper for the IJ to consider information from Wikipedia in evaluating Badasa’s submission on remand, and the government does not dispute that conclusion here.

Wikipedia describes itself as “the free encyclopedia that anyone can edit,” urges readers to “[f]ind something that can be improved, whether content, grammar or formatting, and make it better,” and assures them that “[y]ou can’t break Wikipedia,” because “[a]nything can be fixed or improved later.” Wikipedia’s own “overview” explains that “many articles start out by giving one -– perhaps not particularly evenhanded -– view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form.” Other articles, the site acknowledges, “may become caught up in a heavily unbalanced viewpoint and can take some time -– months perhaps -– to regain a better-balanced consensus.” As a consequence, Wikipedia observes, the website’s “radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized.” The BIA presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum. See also Campbell v. Sec’y of Health and Human Servs., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006) (observing that a review of the Wikipedia website “reveals a pervasive and, for our purposes, disturbing set of disclaimers”); R. Jason Richards, Courting Wikipedia, 44 Trial 62 (Apr. 2008) (“Since when did a Web site that any Internet surfer can edit become an authoritative source by which law students could write passing papers, experts could provide credible testimony, lawyers could craft legal arguments, and judges could issue precedents?”).

The BIA did say that Badasa was not prejudiced by the IJ’s reliance on Wikipedia, but it made no independent determination that Badasa failed to establish her identity. Whereas the BIA sometimes applies a “harmless error” standard when an IJ considers improper evidence or makes other procedural error, and thereby evaluates whether the error affected the IJ’s ultimate conclusion, the BIA here determined only that there was sufficient evidence, other than Wikipedia, to establish that the IJ’s finding was not “clear error.” This is the correct scope of review when an IJ has made findings of fact based on proper evidence, but application of the deferential “clear error” standard to this situation leaves us without a determination by the agency as to whether Badasa proved her identity. We know only that the BIA thinks that if, hypothetically, the IJ had not considered Wikipedia and reached the same conclusion, then that conclusion would not be clearly erroneous. But we do not know whether the IJ would have reached the same conclusion without Wikipedia, or whether (and, if so, why) the BIA believes that the IJ’s consideration of Wikipedia was harmless error, in the sense that it did not influence the IJ’s decision. Because the BIA’s ultimate conclusion that Badasa failed to establish her identity is not adequately explained, we must remand for further proceedings.

Many thanks to David Schwartz for the pointer.

Bill Poser (mail) (www):
Isn't it rather disturbing that the DHS is so lacking in people with expertise in international law and diplomacy that they have to look up the meaning of "laissez passer"? To me this is a stunning revelation of ignorance.
9.4.2008 9:12pm
Sean M:
Bill Poser,

It could be the DHS knew well what a "laissez passer" was and the attorney was scrambling for a cite for the information before handing in his brief. Sometimes what is in the brief doesn't show the actual research process used for the brief.
9.4.2008 9:17pm
Good heavens, why didn't DHS simply ask State?
9.4.2008 9:44pm
Once upon a time I was pressed into service to help reduce a backlog of immigration appeals pending in the Circuits. I was surprised at the general lack of legal rigor throughout the administrative immigration adjudication system. In my limited experience, part of the problem simply seemed to be gross overwork: swamped IJ's were making decision that appeared to be based on gut hunches under the guise of "credibility determinations," and BIA tended to be even more deferential (and thus cursory) than the legal standard called for. Which left more work for the Courts of Appeals than they should have faced in appeals of a two-level administrative system that ought to have fixed most of the gross errors before they ever got to the courts.

Looking on the bright side, it's mildly encouraging that BIA was at least paying enough attention to notice Wikipedia being relied on for a critical issue, and to address the problem, no matter how ineffectively (yeah, I know that's a really low standard to hold anybody to, but you'd be shocked how much facially-suspect documentary hearsay was relied on in the cases I saw). BIA spotting the problem suggests somebody was at least reading the IJ's findings, which wasn't something I was convinced always happened in the old days.

But best of all, now there's some really nice Court of Appeals language to cite the next time opposing counsel tries to rely on Wikipedia in a dispositive motion!
9.4.2008 9:48pm
Modus Ponens:
A bit more of an introduction to that monstrous block quote would have vastly improved this post.
9.4.2008 9:48pm
The main problem with Wikipedia isn't allowing people to edit, it's putting some politically biased hack in charge of deciding what gets through.

Wikipedia can be trusted [sort of] in the realm of pure mathematics, cosmology, and quantum physics. Everything in between usually has a spin.
9.4.2008 10:46pm
tommears (mail):

While there are certainly hacks (political or otherwise) editing Wiki-pages, no one is actually "in charge". It is anarchy in its purest form. Any random idiot can walk in off the street and edit a Wikipedia page (and many do). It is not unusual to have several people working simultaneously on even the most obscure topics. The Wiki-folks encourage people to register, but it is not strictly required.

You or I could go in right now to the Volokh page and replace EVs smiling face with that of Bullwinkle Moose.

That's the problem; no one is in charge. There is nothing behind the scenes other than a cadre of proverbial monkeys-with-typewriters. The only thing that keeps it honest is that most of the monkeys cancel each other out. Surprisingly enough this generally works. But Wikipedia pages should never be relied on as anything other than the quick first approximation of the truth.
9.5.2008 12:01am
Sum Budy:
Wikipedia is a great tool -- for providing general background information that can be used to locate more authoritative sources.

The major problem with it isn't that it can be edited by anybody. The major problem with it is that it's only a secondary source, like any other encyclopedia. And, like any other encyclopedia, one should always confirm the information with more reliable sources.
9.5.2008 12:12am

Modus Ponens:
A bit more of an introduction to that monstrous block quote would have vastly improved this post.

Greatly agreed. The context is far from self-explanatory.
9.5.2008 1:16am
Tony Tutins (mail):
To use wikipedia for authority of any kind, go to the sources listed in the articles, and make sure they stand for the proposition you think they do.
9.5.2008 2:54am
Dick Clark (mail) (www):
Of course, the Wikipedia concept was inspired by Hayek's essay, "The Use of Knowledge in Society."
9.5.2008 3:25am
And if you're going to cite a Wikipedia article, go into the page history and get the URL for a specific version, so you won't be embarrassed by subsequent changes. In the last week, there's been quite a bit of attention paid to the evolution of the article on Sarah Palin.
9.5.2008 4:37pm